Re: The Pro-CODE Bill could make things worse!

At 07:30 AM 3/6/97 -0500, Bill Stewart wrote:
>At 06:44 AM 3/5/97 -0800, Greg Broiles wrote:
> >"Exports. The publisher or manufacturer of computer software or
> >hardware with encryption capabilities shall disclose (for reporting
> >purposes only) within 30 days after export to the Secretary such
> >information regarding a program's or product's encryption capabilities
> >as would be required for an individual license to export that program
> >or product."
> 
> Can it be construed as a "taking"?

The usual "takings" rule is that property must be rendered [virtually]
worthless by regulations/legislation, not just burdened, in order for
government to have effected a "taking". So it's hard to say that burdening
the use/sale of crypto constitutes a taking. And I think it'd be hard to
say that the mandatory reporting is a "taking" of information, mostly
because (modulo trade secret) it's neither unusual nor illegal for the
government to require other information disclosures, without compensation
and for the government's own nefarious purposes. (See, e.g., tax forms,
business registrations, SEC filings, various real/personal property
tracking schemes.) Also, that "taking" does not destroy the information or
render it worthless. 

Which is not to say that I like the rule (I don't), but I don't think that
a court will see a "taking" here.

I'm also unclear about the power of the Information Security Board to
subpoena unwilling witnesses/representatives to testify before it. I don't
know what, if any, subpoena power is available to the executive branch. All
of the easy examples of subpoenas/compelled testimony I can call to mind
take place in a judicial or legislative setting. I'm going to read more
about this and see if I can find anything interesting. 

> What restrictions are there on government use of this information apply?

The general rule is that where the information is otherwise
confidential/proprietary, the government must or will maintain that status.
This is one argument against making the meetings of the review board open
to the public; if they force you to disclose your trade secrets to a small
group of people who are legally obligated to keep them secret, that's one
thing - but if they force you to disclose your trade secrets on the public
record or in an open meeting, that's another. (And that might be a taking,
because trade secret status would be lost, e.g., the trade secret is
destroyed/valueless.) 

> State governments, e.g. California, have a history of ripping off
> copyright and refusing to accept lawsuits against themselves -
> can the Feds do the same?

Hmm. Dunno if the Federal Tort Claims Act allows copyright suits or not. 

> Maybe they can't refuse to let you export
> any more, but can they threaten to publish your source code on
> http://www.dockmaster.mil/warez/ if you don't do what they want?....

Umm. My gut feeling is "no", but public disclosure of information is a
prerequisite to other useful privileges (e.g., patent and copyright
registration/protection) so I'm reluctant to say that the answer is clearly
no. Perhaps other readers have a better background in this area and can
respond more authoritatively.


--
Greg Broiles                | US crypto export control policy in a nutshell:
gbroiles@netbox.com         | 
http://www.io.com/~gbroiles | Export jobs, not crypto.

At 9:11 PM -0800 3/6/97, Greg Broiles wrote:
>At 07:30 AM 3/6/97 -0500, Bill Stewart wrote:
>>At 06:44 AM 3/5/97 -0800, Greg Broiles wrote:
>> >"Exports. The publisher or manufacturer of computer software or
>> >hardware with encryption capabilities shall disclose (for reporting
>> >purposes only) within 30 days after export to the Secretary such
>> >information regarding a program's or product's encryption capabilities
>> >as would be required for an individual license to export that program
>> >or product."
>>
>> Can it be construed as a "taking"?
>
>The usual "takings" rule is that property must be rendered [virtually]
>worthless by regulations/legislation, not just burdened, in order for
>government to have effected a "taking". So it's hard to say that burdening

Though I've read parts of the book, "Takings," excerpted in "Liberty" and
"Reason," which discuss takings in other contexts, such as where land is
declared to be marshland...not rendered worthles, but very much burdened
over what it had been before. But this may be a slight difference, as land
declared to be marshland is _almost_ worthless, for humans.

>the use/sale of crypto constitutes a taking. And I think it'd be hard to
>say that the mandatory reporting is a "taking" of information, mostly
>because (modulo trade secret) it's neither unusual nor illegal for the
>government to require other information disclosures, without compensation
>and for the government's own nefarious purposes. (See, e.g., tax forms,
>business registrations, SEC filings, various real/personal property
>tracking schemes.) Also, that "taking" does not destroy the information or
>render it worthless.

If the government said that people could have private diaries provided they
deposited a copy with the government, woudn't this be analogous to these
examples of reporting you cite? I'd call it a "taking," or a violation of
the Fourth.

Such reporting requirements have very real costs, and many scholars are
arguing that they are in fact "takings."

(When I was at Intel, as I've said before, one set of laws demanded that we
give detailed reports on the racial makeup of those we interviewed for
employment, to ensure we met the proper EEOC quotas for interviews (and
hires) of various racial groups. Another law said asking applicants to
state their race and ethnicity was a high crime. So we had to guess. I got
in trouble for writing down "Aryan" for some of the white applicants. I
figured if they wanted this kind of crap, I'd give it to them. I also
estimated the percentage of Jewish blood in some of the applicants, with
anyone with more than 1/16th Jewish blood declared to be "non-Aryan." My
boss was not amused. They never sent me out on college recruiting trips
after 1979.)


>Which is not to say that I like the rule (I don't), but I don't think that
>a court will see a "taking" here.

Well, I agree. If the courts did not see the imprisonment of 15-18 jurors
for more time than the killer O.J. served as a "taking," with their time
valued at the princely sum of $5 a day (what I would call "rendered
worthless"), then nothing will be ruled a taking.

The only solution is to use crypto anarchy to destabilize the system and,
hopefull, see them swinging by their necks in front of the Washington
Monument. Nearly every politician I'm aware of has richly earned the death
penalty, and I hope to see in my lifetime justice carried out.

--Tim May



Just say "No" to "Big Brother Inside"
We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."